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Introduction to the Presentation Prior to beginning this presentation, you should have read Chapter 13 of Yell’s (2006) The Law and Special Education, 2nd Edition Upon completion of this session, you should be able to discuss the safeguards requirements under the IDEA

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General Requirements Notices must: Include full explanation of safeguards Be written in parent’s native language Be in understandable Ianguage Be available to parents Safeguards must be provided to parents: At least once a year At initial referral When due process compliant filed When a copy is requested

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General Requirements Notice must be provided to parents: When referral is initiated Before initial placement Before changes to identification, placement, or IEP are made Before changes to identification, placement, or IEP are denied Within a reasonable amount of time (e.g., 10 days) With enough information for parental understanding

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General Requirements Consent is voluntary Consent can be revoked while activity is taking place If parental consent is refused for initial evaluation, due process and mediation can be pursued If parental consent is refused for initial placement, no action is taken and school’s legal responsibilities end

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General Requirements Parents must have access to records: Within 45 days or less Before IEP meetings Before due process hearing Record of individuals accessing records must be kept (not including authorized personnel and parents) Access is not extended to personal notes, school security records, or personnel records

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General Requirements Parents may request records be amended; if amendment is refused, due process hearing can be requested Parents may request 1 IEE at school expense Hearing officer can require reimbursement for IEE

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Mediation Helps maintain working relationship Must be offered as a voluntary option May not delay parental right to due process hearing Involves trained, impartial, & knowledgeable mediator selected by both parties from list maintained by district

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Mediation Resolutions are legally binding document Cannot be used as evidence in due process hearing Must be kept confidential - pledge often required before process starts Resolution session serves an intermediary step between mediation and due process

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Due Process Hearing Allows impartial party to settle dispute Addresses issues related to evaluation, identification, placement, or provision or FAPE + amendment of student records Complaint must be filed within 2 years, unless state has specific time limit

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Due Process Hearing Complaint can be filed by parent, school district, or student at the age of majority Individual states determine what agency conducts hearing Conducted at time and location convenient for parent

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Due Process Hearing At least 5 days before hearing, all evidence must be disclosed One-tier procedure - initial review conducted by state department of education Two-tier procedure - initial review by school district with administrative review by state department of education

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Due Process Hearing Hearing officer can have no personal or professional interest that conflicts with the case Decisions must focus on meaningfulness of education, not violation of procedures Officers cannot award attorney’s fees, control outside agencies, or order specific educational placements

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Due Process Hearing Decision must be made in 45 days or less after the request for a hearing Parties can be represented by counsel Parents can request list of free/low-cost services, but must obtain and pay for services Only parents can open hearing to the public

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Due Process Hearing Either party can appeal within 90 days after decision is rendered Stay put provision requires student to remain in current placement during hearing, unless parents and school agree otherwise Stay put provision can be negated when drugs, weapons, or serious bodily harm involved

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Due Process Hearing Verbatim record of hearing - typically written, unless parents request electronic Burden of proof lies on school district No timeline for filing of appeal in the IDEA; findings must be mailed within 30 days of the appeal Civil actions must occur within 90 days of decision of appeal

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7 “Deadly Sins School districts enter due process due to: Committing procedural violations Denying service based on cost Refusing consider something new/different Giving to parental demands without cause Acting on principle, rather than reason Failing to assume the burden of proof Failing to secure services in a timely manner

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Remedies States as well as schools can be sued Attorney’s fees allowed if parents are prevailing party as a result of court case Attorney’s fees not awarded for participation in IEP process School districts can be awarded attorney’s fees for frivolous, unreasonable, or unfounded actions

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Remedies Attorney’s fees for states or districts when the complaint or action is for improper purposes For injunction, a school must prove: Existence of risk of serious bodily injury All reasonable steps to reduce risk of injury have been taken Reimbursement for tuition, and related expenses, allowed when school does not provide a FAPE to student

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Remedies Reimbursement for early intervention services are also allowed when not provided appropriately Compensatory education can be awarded when FAPE is not provided Monetary damages are not typically allowed, except in a few cases involving bad faith and gross misjudgments

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